I wrote some explainers on this site about New Zealand’s Terrorism Suppression Act following the Urewera Raids. I won't link to them as they are somewhat out of date. While still largely accurate for their descriptions of the offences of membership of a terrorist organisation, new terrorism offences have been added since. These include offences of “terrorist act” and “terrorist bombing”, which I detail below to bring together information from various tweets in one place.

Any charge under the Terrorism Suppression Act requires the consent of the Attorney-General. In reality, this decision will always be made by either the Solicitor-General, or more usually, a Deputy Solicitor-General under devolved authority. The permission is not required before taking steps in the proceeding like arrest or charge, but would have to be obtained before a prosecution proceeded beyond initial stages (this is not always the case with some other offences which need Attorney-General or Solicitor-General consent).

What does the Terrorist Act offence involve?

In New Zealand, it is a crime to engage in a terrorist act. The test of whether something is a terrorist act has three parts:

The act must be intended to cause:
[you need one of these]

a) death or serious injury (other than to the terrorist);
b) serious risk to health or safety;
c) serious interference to an infrastructure facility likely to endanger human life;
d) destruction or serious damage to property of great value or importance, or major economic loss, or major environmental damage if likely to cause a, b, or c;
e) the release of a disease bearing organism if likely to devastate the economy; or

and it must be carried out for the purpose of advancing:
[and you need one of these]

a) an ideological cause;
b) a political cause; or
c) a religious cause.

and it must be intended to:
[and you need one of these]

a) induce terror in a civilian population; or
b) unduly compel or to force a government or an international organisation to do or abstain from doing any act.

The maximum penalty for engaging in a terrorist act is life imprisonment. If the sentence imposed was life imprisonment, and not a shorter sentence, a 10-year non-parole period would apply.

What does the Terrorist Bombing offence involve?

In New Zealand, it is a crime to engage in a terrorist bombing. A person commits the offence of terrorist bombing if they intentionally and without lawful justification or excuse do one of the following with an explosive or other lethal device:

a) a place of public use
b) a State or government facility
c) a public transportation system, or
d) an infrastructure facility.

The action of delivering, placing, discharging or detonate must have been done with intention to cause:
[and you need one of these]

a) death or serious bodily injury; or
b) extensive destruction of the place, that results in (or likely to result in) major economic loss.

Like the terrorist act offence, the maximum penalty a terrorist bombing is life imprisonment. If the sentence imposed was life imprisonment, a 10-year non-parole period would apply.

It is notable that the offence of terrorist bombing can be committed without a bomb being detonated. Mere delivery of an explosive device can be sufficient if the other elements of the offence are present (but the requirement for an ideological cause, etc. do not apply to this offence).

If an explosive device was not actually delivered or placed, a charge of attempted terrorist bombing might be possible. Recalling that mere placement or delivery of an explosive device is sufficient for a charge of terrorist bombing (with a life sentence), if an attempt fell short of that, so that it could not be charged as a terrorist bombing, a maximum penalty of 10 years imprisonment (with a maximum non-parole period of 6 years, 8 months) would be available.

What other charges are possible, where there are terrorist acts?

That an event qualifies as a terrorist act, or a terrorist bombing, or attempted terrorist bombing, does not mean it could not be charged as another offence instead, or in addition to a terrorist charge. For example, murder charges, attempted murder charges, or wounding charges, as well as arms act offences, and many others. Those are more widely understood, so I won’t explain them here. A person can be charged with multiple offences arising out of the same conduct. Charging someone with murder does not prevent a terrorist act charge for the same killing.

What sentences are possible under terrorism laws?

As noted, the maximum penalties for offences under the Terrorism Suppression Act are life sentences. A finite sentence can be imposed, but even if a life sentence was imposed for a terrorism offence, the sentencing judge would not have the option of increasing the non-parole period beyond 10 years, and the default non-parole period would apply.

Preventive detention is not a possible sentence for a charge laid under the Terrorism Suppression Act.

Preventive detention vs life imprisonment

The distinction between preventive detention and a life sentence is not widely understood. The major distinction is at sentencing itself. Once imposed, there is effectively no distinction between the sentence. Both life sentences and sentences of preventive detention can require a person to be detained for their whole life, and both also allow for lifetime recall to prison if the person is ever paroled.

As a general rule, offences which carry a maximum sentence of life imprison do not allow for the possibility of sentence of preventive detention. It would be redundant. Rather, preventive detention provides a process by which a court may effectively impose a life sentence for an offence which ordinarily only provides for a finite (as opposed to indefinite) sentence, in order to protect the community. A life sentence already allows the indefinite detention of a person for the safety of the community. Preventive detention allows for the indefinite detention of people who commit offences with finite maximum penalties.

Under an indefinite sentence (either life imprisonment or preventive detention) parole is not automatic, and few, if any, people serving indefinite sentences get paroled at the first opportunity. Many never get paroled. All people who are subject to an indefinite sentence and who are paroled are subject to parole conditions and to the possibility of recall to prison for the remainder of their lives.

What sentences are possible under other laws like murder?

In New Zealand, murder carries a life sentence. Unlike the life sentences possible in respect of any other offence, including terrorism offences, when imposing sentence following a murder conviction a Court has discretion to impose a higher non-parole period. The default is a 10 years non-parole period, but a non-parole period of at least 17 years must be imposed in a range of circumstances (the full list is available here, but one such circumstance in when the murder was committed as part of a terrorist act). Courts are permitted to impose even higher non-parole periods if appropriate.

In a relatively recent law change, a murder conviction can also result in a sentence of life without parole. Although this was brought in at the same time as the three strikes regime for serious sexual or violent offending, it is available for any murder conviction. The offence does not have to be a second or third strike. In the almost nine years since that law change, no sentence of life without parole has yet been imposed. A sentence of life without parole is only available as a sentence for murder; it is not available for any other charge even a terrorism charge.

Attempted murder and wounding charges carry maximum finite sentences of 14 years imprisonment (with a non-parole period at most of 9 years, 4 months). Charges of attempted murder and wounding do allow for a sentence of preventive detention, which can see a higher non-parole period. Preventive detention cannot be imposed without parole, but as noted above, parole is never automatic for indefinite sentences, and many people serving indefinite sentences are never paroled.

It is not possible to order a finite sentence to be served cumulatively with an indefinite sentence. The non-parole periods of indefinite sentences must run concurrently, however, in setting a non-parole period following a murder conviction (or in deciding to order it to be served without the possibility of parole), a Court will take account of all the offending when deciding the sentence and minimum period of imprisonment of the most serious charge.

Next Friday, students around New Zealand will be taking part in a climate strike, concerned about the international, and national, response to the threat of climate change.

That people are discussing their decision to wag school to take part pretty clearly validates the decision to bunk off school for the protest. The point of a protest is to get noticed. Sometimes, this is by being arrested. At particularly bad times in history, it's by risking your physical safety. And sometimes, it's by declaring you won't be going to school.

People telling them they should be at school are kind of missing the point. Of course they should be at school. They shouldn't have to give up school to get people to take their issues seriously, but they feel they have to, to make their voices heard. If it was on a weekend, it wouldn't be a strike. And it wouldn't be as newsworthy.

Part of the point of a protest or a strike is that you do not ask permission. You give up something of value (in this case, some education), or you risk something (perhaps a detention) because you think the trade is worth it. And if you get that detention, along with other like-minded individuals, it will probably be the best detention you ever had.

I do not know what policy changes they seek. Perhaps they will make clear some of their demands at the marches themselves. The youth climate movement is in its early stages, and will probably change as it grows. It's likely I'll disagree with some of their aims. That's kind of the point too. They want other people to think about things they currently aren't. Thing they say affect them and young people to a greater degree than they affect others.

A protest isn't about making people happy, it is about making people notice. And that's especially important when you do not have the means of making a difference that others have - like voting.

When the women-led Temperence Movement wanted to advance their cause in New Zealand, they also pushed for voting rights for women. They argued that women bore the consequences of alcohol to a greater extent than others, and wanted women to be able to make that point at the ballot box.

I'm kind of hoping there are a few participants at the climate strike who are students of that history.

Their long-term and medium term aims are matters for them, but, because it's what I do, I thought I'd draft a bill to give them an option, should some of them wish to take it up: the Electoral (Voting at 14) Amendment Bill. It does what it says on the tin, and would reduce the voting age in New Zealand to 14.

I've written about the voting age before, wondering why, given the levels of youth engagement in politics, there wasn't more of a push for reform - one obvious answer is that it's a problem that solves itself on the individual level, unlike other voting rights campaigns.

I think there are good arguments for the age being even lower (or even abolished) - Lucy Gray, the organiser of the climate strike in Christchurch, is 12 - but I'm a pragmatist, and so dramatic a change is unlikely to be achieved in a single step. And 14 seems a reasonable compromise. It also fits with some of the other legal ages we already have: 14 is when you stop being a child and become a young person; and 14 is the age of full criminal responsibility, when the law says you have sufficient cognitive abilities to bear criminal responsibility for your actions.

One of the common arguments against young people voting is that they might be more susceptible to undue pressure than other voters. This was an argument against giving women the vote, and it's one of the reasons we have the secret ballot. But to allay these concerns somewhat, the Electoral (Voting at 14) Amendment Bill increases the penalties for corrupt practices in the Electoral Act, which are presently low when compared to other offences.

Because of the way our electoral laws are written, the age would automatically apply to other elections, like local body elections, and to referendums. The simplest way to write the bill also means that it would also allow people to run for office at 14. I wasn't sure about that last bit (↑ pragmatist), but I decided if New Zealanders wanted to elect some amazing 15 year-old, I wasn't going to completely rule out allowing them at this early stage, but it wouldn't be too difficult to change if anyone wanting to advance it decided that was a step too far.

Reducing the voting age to 14 is not something I'm planning to campaing for, because, well, I think any campaign should be led by people who aren't as old as I am. But if young people, especially - but not necessarily - those taking part in the climate strike, see some benefit opening up democracy to include more voices, and want to add this to their list of goals, I am happy to offer this bill and my support. Let me know if you want any changes, or any legal advice :-)

I recently published a tweet thread, which I thought I might copy and past here, for anyone interested.

=============

I have long thought that the 20 working days allowed to appeal a refusal to make a suppression order is too long, when the law requires the court appealed from to make an interim suppression order for that period.

The law did not used to require this. There was no automatic right for interim suppression, which used to be a matter of discretion. A defence lawyer could tell a judge of the intention to appeal, and ask for interim suppression.

The judge might ask: will two days (a week/whatever) be enough to appeal? The lawyer might respond: I've a trial tomorrow and Thursday, I'd appreciate if I could have until Friday. And the judge could agree. It didn't always work. But it also didn't mean an automatic 20 days.

The new law treats an appeal from a refusal to make a suppression order the same as any other appeal - allowing 20 working days to file the notice of appeal, and automatically extending an interim suppression order.

Usually, delaying filing an appeal will be bad for a defendant (if you wait 20 days to appeal a refusal of bail, that means you've spent 4 weeks extra in prison), but this is one time where it doesn't.

It also unreasonably affects the public and news media who wish to report on matters of public importance, and which a judge has ruled it is unreasonable to prohibit them from doing so. In light of this, 20 working days is excessive.

It is important to note that Avery didn’t complain that Newsroom committed a criminal breach of the Act, rather, he said that by publishing its journalism, Newsroom had breached some of the Act’s “communication principles”, in that he says it harassed him, and contained false allegations.

Netsafe, as an “approved agency” under the Harmful Digital Communications Act, forwarded the complaint on, waited for a response, and then decided to do nothing beyond letting Avery know what his options were. The agency reportedly advised Newsroom that the law was:

not clear about how to treat HDC complaints as they apply to media, and there is limited case law from which to form our advice …

Therefore we are not recommending you take any further action. We have recommended to Sir Ray Avery that if he wishes to pursue this complaint he has the option of applying to the District Court.

Recommendations are all an approved agency can really do anyway – cooperation with an approved agency is entirely voluntary. It doesn’t make binding decisions or issue rulings. Its role is intended to be limited to offering advice, and acting as a go between.

The response to this has been odd.

The idea that someone emailing Netsafe is a threat to free speech is ridiculous. And, despite the flaws in the Harmful Digital Communications Act, the idea that someone might make a complaint that appears to have no real basis isn’t a threat either. There are people who legitimately think that mis-gendering someone is genocide. However rude or offensive it may be, it isn’t genocide, but the idea that someone might make a complaint about that isn’t a reason not to have laws against actual genocide.

I am not a big fan of the Harmful Digital Communication Act, but I recognise that most of my concerns are, in reality, unlikely to play out. I would, of course, prefer to avoid the risk. But my major area of concern is with the criminal offence the act creates, not the civil processes.

Netsafe’s response as reported by Newsroom was that they were unsure how to act with complaints around news media. This echoes observations from, for example, Prime Minister Jacinda Ardern (as reported by Newsroom) that:

Asked whether she felt it was possible for a media outlet to cyberbully an individual or organisation through news coverage, Ardern responded: “That is not my understanding of the intent of the bill or the act.”

was never designed for this purpose; it was designed to prevent cyber bullying and making false accusations about people on social media … revealing sensitive personal facts on social media and so on. It was never designed as a form of complaint mechanism against the media generally.

I believe I can clear this up.

The Harmful Digital Communications Act covers the news media.

People who complain that they have suffered serious emotional distress as a result of the online publication of material can complain about the cause of that distress under the Act, whether the cause of that harm was a facebook post, or a news story. News media are not exempt.

This is not unclear drafting, or an unintended consequence of loose legislative language.

The news media would not be subject to the Tribunal except in cases where the news media outlet responsible for publishing the offending content was not subject to one of the established regulatory bodies – the Broadcasting Standards Authority or the Press Council or any regulator which may replace them.

The Government was well aware of this recommendation, it just chose not to follow it.

This was a matter that was of high interest to the Select Committee, so much so that they sought and obtained interim advice from the Ministry of Justice on this question, which it later expanded (.pdf):

32. While the news media has its own complaints systems, it is not clear whether those systems are designed to enforce concepts or standards that align with the principles in the Bill.33. For instance, the Online Media Standards Authority, the Press Council and the Broadcast Standards Authority each have regimes that focus on, among other things, accuracy, balance and fairness. However, these three regimes do not apply identical standards, raising the possibility that different sectors of the news media are regulated using different standards. In addition, the way news is delivered has fundamentally changed; many of the traditional safeguards that guided the content of news are now outdated in today’s 24-7 news cycle.34. Many of the media standards currently in place apply largely the media’s traditional role as an originator of content (eg, publishing factual stories or opinion pieces regarding current events). However, even the biggest media organisations are presenting the news in increasingly interactive ways, for instance, by soliciting reader input, permitting comments, operating live chats and facilitating message boards. It is not clear that these secondary activities are sufficiently covered by existing regulatory regimes.35. In light of the above limitations, there are good reasons for the media to be included in the Bill. The Bill contains sufficient flexibility and safeguards to ensure it can be applied to news media without having a chilling effect on freedom of expression:35.1. First, it is highly unlikely that “traditional” media activities would violate the principles and also cause harm to a person. The media have themselves noted they have experience in dealing with sensitive matters and guidelines for publishing;35.2. Second, where media outlets are involved in non-media activities (eg, reader published content, comments, and message boards), they should bear the same responsibility for managing that content as

private hosts (eg, Trade Me);35.3. Third, the Agency under the Bill does not have coercive powers, and so cannot order any person or organisation to do anything;35.4. Fourth, the Bill requires the court to balance critical freedom of expression issues in the context of a particular situation. In the unlikely event that the media is responsible for a digital communication which causes a person to suffer harm, there is an explicit public interest test that a court must apply, which will be of particular importance in any case involving the media.36. If a harmful digital communication is so egregious that it breaches a principle, causes harm, and its seriousness outweighs the public interest in it, then it is entirely appropriate that it be subject to the Bill.37. We note the concerns of the media that their involvement in complaints with the Agency may result in greater time and effort for what may be frivolous or vexatious complaints; but, that it no different to any other person or organisation who is subject to the Bill.

This was not a drafting error.

Just because you are a member of the news media, does not mean you can publish revenge porn, or any other material likely to cause serious emotional harm. This was a deliberate decision, based on the Ministry of Justice’s view, supported by Parliament, that legitimate journalism was protected.

And there are strong arguments that it is, at least in relation to the civil regime. We’ve already noted that Netsafe, the authorised agency, has no coercive powers. Instead if you want to force someone to take something down, you have to go to the District Court, and before that Court makes any orders under the act, there are some things it has to do:

(5) In deciding whether or not to make an order, and the form of an order, the court must take into account the following:

(a) the content of the communication and the level of harm caused or likely to be caused by it:

(b) the purpose of the communicator, in particular whether the communication was intended to cause harm:

(c) the occasion, context, and subject matter of the communication:

(d) the extent to which the communication has spread beyond the original parties to the communication:

(e) the age and vulnerability of the affected individual:

(f) the truth or falsity of the statement:

(g) whether the communication is in the public interest:

(h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:

(i) the conduct of the affected individual or complainant:

(j) the technical and operational practicalities, and the costs, of an order:

(k) the appropriate individual or other person who should be subject to the order.

If, in the balance, something claimed to be legitimate journalism can’t win once a Court has looked at this, I wonder whether we need to assess whether it is, in fact, journalism. And if the District Court does order something taken down, is that really a greater impingement on media freedom than an injunction ordering the same made in the High Court in a privacy or defamation claim?

Now, there are problems with the act. The criminal offence (not in play in the Avery case, as of yet) does not reflect the same nuanced approach I’ve detailed above. But it’s not clear to me what problems there are in the civil regime (other than the safe harbour almost hilariously over-protecting freedom of speech).

For one, I consider that the inclusion of news media isn’t a weakness, it’s a strength.

I’m probably the strongest supporter of freedom of the press and freedom of speech that I know, and I’m not saying I support the Harmful Digital Communications Act in its current form, but I absolutely do not support an exemption for news media from this form of regulation.

I have a couple of reasons: the principled one is that I do not believe there should be statements that can lawfully be made by on a newspaper website, that would be unlawful if made by someone else.

I accept that there are a few very specific areas where recognised news media will have additional rights (one that comes to mind is the right of news media to remain in court during the public excluded parts of criminal proceedings, such as the evidence of complainants in sexual cases; another might be, if a register of name suppression is ever created, this couldn’t work if everyone could access it), but these types of rights do not affect what can be published. It should not be lawful for news media to publish material it would be illegal for me to publish.

The pragmatic reason is that if the media is in with the rest of us, the chance of good precedent in the application of the Harmful Digital Communications Act greatly increases. Courts will be more careful in applying the act if their rulings can affect freedom of the press. If there are problems with the act, they should be fixed for everyone, not just the news media.

The criminal offence? Well, it would be good if the explicit invocations of public interest were included there too. The examples usually given by people concerned with the law (which includes me), are around the exposure of serious offending, say political corruption, or sexual violation). I could easily argue that publicising someone’s long history of sexual abuse must be intended to cause them serious emotional harm. How could it not?

The law shouldn’t be written in a way that could preclude public interest journalism. But in reality, I just don’t think that’s how it would play out. New Zealand Courts are pretty good at avoiding the excesses that could result from expansive interpretation of criminal offences – contrast the approach in the United Kingdom to its offensive language laws to that taken by our courts. I expect the same would apply here. There isn’t an explicit defence that the serious emotional distress that might be caused by a digital communication is justified, but in these sorts of circumstances, I’m pretty confident the Courts would ultimately say there was one. But pretty confident isn’t good enough, so I encourage a law change to fix this.

The Electoral (Integrity) Amendment Bill is going through it's final stages, and will likely pass this week.

It is going to pass, and amendments - such as a sunset clause - or the exclusion of electorate MPs from its scope - or a delayed start - are not going to be agreed to by a parliamentary majority either.

But it is not too late for Parliament to make some minor changes to the bill to make a slightly better, and to slightly better protect principled opposition within Parliamentary parties.

The point of this blog post is pretty simple: it is to ask Labour MPs, New Zealand First MPs and Green MPs to consider supporting three particular amendments proposed by National.

National has proposed many amendments that a supporter of the broad thrust of this bill could not support. That's what oppositions do. You get on record that the Government opposed something so can present it to the electorate later to show why they're bad. The point of such amendments is not really to get them adopted, but to force the government to vote against them.

But the three amendments I seek support for are not "wrecking amendments". They are very limited amendments, designed to ensure that the process for removing an MP from Parliament is fair, and identifiable.

First up is Chris Penk's proposed amendment in supplementary order paper 69. It would require registered parties to have rules around the process they would use to seek to expel an MP from Parliament.

In a similar line is Tim Macindoe's proposed amendment in supplementary order paper 71. This would require that those rules would have to be provided to the Electoral Commission and available for public inspection.

Parties are already required to have public rules around two specific things: party membership, and candidate selection. The processes around these are important matters that should be set out and publicly-available. I think this is also true of rules around expulsion of MPs. The two amendments do not require anything in particular in the rules - one party could leave the issue completely up to Caucus, and other parties might involve the party council, etc. - but the rules of each party should be a matter of public record, consistent with other aspects of the Electoral system.

A version of Macindoe's amendment in supplementary order paper 70, which proposes that the rules that applied at the election should apply for the whole term (so that parties can't change the rules after an election) might also be appropriate, but I recognise that in its present form, the Government won't vote for it, as this would preclude any expulsions this term.

I also ask Government MPs to consider supporting Simeon Brown's amendment in supplementary order paper 64. This proposes that the caucus vote to declare than an MP has distorted Parliament should occur by secret ballot.

I think this is an unfair criticism - I engaged with them in both my written submission and oral submission, and the Academic experts Little criticised as having failed to do so engaged with them in their presentation to the Justice Committee - but now is his chance to meet his own challenge: making the caucus vote a secret ballot would add substantial weight to his argument that the were safeguards in the bill that would prevent a leader being able to silence opposition within their caucus.

There is one other matter, not touched that I can see, in an amendment proposed by National, which I would like to see someone pick up for serious consideration. In light of Andrew Little's argument about the two-thirds vote in caucus being a "major safeguard", I note my written submission included the following:

At present, the bill requires a two-thirds majority vote of a party caucus to expel and MP from Parliament. If an MP is really threatening the proportionality of Parliament, one would expect much greater unanimity from a party caucus as to that fact, than a mere two-thirds.

Under the current proposal, National could eject an MP even if 18 of their MPs considered the MP had not threatened the proportionality of the House, and Labour, could eject an MP with 15 MPs opposed. If the vote had anywhere near that many opposed, I think it must be seriously disputed whether proportionality would have been threatened.

When you are talking about ejecting an MP from Parliament, a much higher vote should be required, perhaps even near unanimity of the party caucus (ie unanimous, but the for the MP in question). An MP who has the support of even two or three of their party colleagues represents a significant party position likely to have been supported by at least some of that party’s voters, whose voice should not be silenced by other party factions. An MP with that level of support from the party Caucus should not be forcibly expelled from Parliament.

I do not think it is beyond the skill of government MPs, or opposition MPs to draft such an amendment before the debate on the Electoral (Integrity) Amendment Bill continues. (UPDATE: I was working off the online list of proposed amendments, which appears to be a couple of days behind, as National MP Chris Bishop advises he has proposed such an amendment).

I still oppose the bill, but there is an opportunity in the next few days to make it inarguably better than it currently is.

And if you are one of the 63 MPs from Labour, New Zealand First of the Green Party with the power to decide this final form of this law, please consider your position on supplementary order papers 64, 69, and 71, not least because you have the opportunity to blunt some of the criticism you are currently facing for supporting the bill.